Voc Rehab Case Law Update

Saturday, June 17, 2006 | 0

An injured worker's injury is contested AOE/COE. On the Application for Adjudication of Claim, applicant's attorney indicates that Rehab is at issue.

Three years after injury, the applicant's treating physician finds the applicant QIW. Four years after injury, an AME finds the injury industrially related and the applicant a QIW. Is the applicant entitled to retro VRMA?

One of the dangers in contesting a case AOE/COE is that all benefits come immediately due upon a determination by the Board that an injury is industrial (i.e., that in jury is AOE/COE). This means you owe all the benefits not paid during the AOE/COE dispute.

That is exactly what happened in Robinson-May Department Stores, PSI, Petitioner v. WCAB (Scott Schwartz) (Jan 2006) 71 CCC 302 (writ denied). We have case law supporting the proposition that identifying rehabilitation as an issue on the Application constitutes a request for services. A defendant might argue that no VRMA should be due prior to a determination that the applicant was a QIW which, in this case, happened some three years after injury.

However, we have L.C. Section 139.5(d)(2) that says an applicant is entitled to VRMA benefits where s/he prevails in a QIW dispute. Here the applicant prevailed at an AME exam so benefits were due retroactively. An AOE/COE defense should not be undertaken lightly - and this case demonstrates why.

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, allanleno@leno-assoc.com.

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